William Baxter v. SSA CV-07-200-SM 09/05/08 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

William Baxter

v.

Michael J. Astrue, Commissioner Social Security Administration

Civil No. 07-cv-200-SM Opinion No. 2008 DNH 220

REPORT AND RECOMMENDATION

In February 2004, claimant William Baxter filed an

application for disability insurance benefits and supplemental

security income (“SSI”) under Title II and Title XVI of the

Social Security Act, claiming he had become disabled on January

20, 2002. That application was denied on July 28, 2004, and

claimant sought no further review. He filed a second application

for social security benefits on October 15, 2005, again claiming

January 20, 2002, as the date he first became disabled. Claimant

asked the administrative law judge (“ALJ”) to reopen the 2004

application, but he refused, finding there was no new, material

evidence to justify reconsidering the prior determination. See

20 C.F.R. §§ 404.988 & 416.1488. A hearing on the matter was

held on November 9, 2006, after which the application was granted

in part, based on a disability onset date of January 7, 2005, not

January 20, 2002. Claimant sought review of that decision by the

Appeals Council, which was denied, rendering it the final

decision of the Commissioner of the Social Security

Administration (“SSA”). Claimant now seeks review of that final

decision to deny his application for disability insurance

benefits for the three years from January 2002, when he alleges

he first became disabled, to January 2005, the disability onset

date determined by the ALJ. See 42 U.S.C. § 405(g).

Before the court are claimant’s Motion for Order Reversing

the Decision of the Commissioner (document no. 8) and Defendant’s

Motion for an Order Affirming the Decision of the Commissioner

(document no. 11). For the reasons that follow, I recommend that

the court deny claimant’s motion and grant defendant’s motion to

affirm the Commissioner’s partial denial of benefits.

I. BACKGROUND1

1The facts are taken from the Joint Statement of Material Facts (document no. 12) and the certified record of the entire proceedings before the Social Security Administration (referred to hereinafter as the “CR”).

2

Claimant has a high school degree and attended college for

two years. He worked as a carpenter and cabinetmaker in

residential construction, but has not engaged in “substantial

gainful activity,” as that term is defined by 20 C.F.R. §

404.1505(a), since January 28, 20022, when, at 41 years of age,

he injured his left knee coming down off of a roof at work. He

worked intermittently, between surgeries and post-operative care,

as a self-employed carpenter from that date forward until

November 2004; however, the record contained no evidence of any

earnings for either 2004 or 2005. According to claimant’s

earnings’ record, he acquired disability insurance coverage

through June 30, 2005. CR at 15, 17.

Following his accident, in February 2002, plaintiff saw Dr.

John Bloom, an orthopaedic surgeon, for the swelling and

tenderness of his knee. CR at 153. X-rays and MRI scanning

showed early degenerative changes and tears of the medial

meniscus and anterior cruciate ligament. Dr. Bloom referred

2Medical records indicate the injury occurred on or about January 23, 2002, and claimant states January 20, 2002, as the onset date. This slight variation in dates is immaterial to the disability determination, and so the ALJ’s January 28, 2002, date is accepted as the date claimant last engaged in substantially gainful activity that produced any record of earnings.

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claimant to another orthopaedic surgeon, Dr. Peter Buckley, who

placed claimant on light duty status until he had surgery to

repair his knee. CR at 154. Surgery was performed in May 2002.

Although claimant developed some swelling and stiffness, Dr.

Buckley released him to return to light duty work. CR at 160.

In July 2002, claimant’s swelling had subsided, but he complained

of stiffness and pain and exhibited thigh atrophy. CR at 161.

Dr. Buckley noted claimant was doing well but needed to work on

his physical therapy. In August 2002, Dr. Buckley again examined

claimant, who still showed some weakness and atrophy but had

progressed significantly and retained the ability to do light

duty work.3 Finally, in October 2002, claimant had no complaints

and his examinations were normal, enabling him “to return to full

activities without restrictions.” CR at 163.

In January 2003, claimant returned to Dr. Buckley with more

swelling and pain to his left knee, after it “popped” when he was

getting into bed. CR at 164. Dr. Buckley determined that

claimant had another medial meniscus tear, and performed surgery

3Notes from this office visit state claimant complained of pain “after running several miles”; however, in November 2003, claimant called Dr. Buckley to correct the record to reflect that he had not run since leaving the military several years prior.

4

in March 2003. Following surgery, claimant needed both physical

therapy and assistive ambulatory aides. Claimant returned to Dr.

Buckley on April 14, 2003, complaining of severe pain laterally

and swelling of the knee, which was primarily caused by the use

of stairs. By May 2003, however, claimant’s swelling had

subsided, he could walk unassisted, and no longer required pain

medication, except occasionally at night. Claimant was

authorized to return to work, but could not kneel or squat.

Throughout the summer of 2003, claimant saw the orthopaedist

to monitor his progress. Although claimant’s condition had

improved, he began complaining of back pain, caused by his

irregular gait, and continued to suffer from pain at night and

after prolonged sitting or climbing stairs. He was diagnosed

with possible patellofemoral syndrome. On October 27, 2003, Dr.

Buckley’s office completed a “Determination of Incapacity Status”

form from the New Hampshire Department of Health and Human

Services (“NH-DHHS”), which indicated claimant was incapacitated

as of January 8, 2003, due to a left knee injury that was

described as “partial permanent impairment.” CR at 285.

In January 2004, claimant returned to Dr. Gregory Andrecyk,

a primary care physician, for heart fluttering, and continued in

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Dr. Andrecyk’s care for the remainder of the disputed coverage

period.4 Claimant reported that he still suffered from left leg

and low back pain and was feeling depressed. He also continued

to have trouble with high blood pressure. Claimant stated that

he had stopped taking his anti-hypertension medication because he

has run out of refills. In February 2004, claimant saw a

psychologist, who gave him a “clean bill of health.” CR at 177.

Dr. Andrecyk assessed claimant as suffering from chronic low back

pain, hypertension, high blood pressure and obesity, but that his

ambulatory problems stemmed from his knee injuries, not from

pulmonary or cardiac issues. Dr. Andrecyk prescribed several

medications for claimant’s pain and hypertension and to help him

stop smoking. CR at 181-82. Dr. Andrecyk also referred claimant

to a pain clinic in March 2004, where he began seeing Dr. James

E. Tobin. CR at 201.

Claimant told Dr. Tobin that he had experienced low back

pain since he had been in a motor vehicle accident in 1995. Id.

He reported that his pain increased after his January 2002 fall,

when he injured his left knee. Since that injury, claimant had

4The record reflects Dr. Andrecyk continued as claimant’s primary care phsycian until at least August 31, 2006. CR at 322.

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intermittently suffered from pain in his left lower extremity and

his left ankle. Id. Dr. Tobin’s examination revealed weakness

in claimant’s left foot and difficulties raising his left leg.

He also noted that claimant’s lumbar spine was tender on

palpation, particularly on the left side and over both the left

and right lumbar facet areas. CR at 202. Dr. Tobin concluded

that claimant was “in moderate distress secondary to his back

pain” and that “sensory exam [was] grossly within normal limits.”

CR at 201-02. In March 2004, the pain clinic administered three

epidural steroid injections in claimant’s back, which succeeded

in reducing his symptoms. CR at 196-200.

As part of his first application for social security

benefits, claimant had a physical residual functional capacity

assessment (“RFC”) done on April 21, 2004. CR 114-21. The RFC

form indicated claimant’s primary diagnosis as a left knee ACL

tear with reconstructive surgery, and a secondary diagnosis of

“DDD-lumbar spine.” CR at 114. This assessment found claimant

had minimal exertional restrictions, being able to carry 10-20

pounds, to sit, stand or walk, with normal breaks, for 6 hours of

an 8 hour day, and to push or pull in unlimited amounts. His

postural limitations were only “occasional,” and he had no

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manipulative, visual, communicative or environmental limitations.

CR at 115-18. The examiner found claimant’s alleged deficiencies

to be unsupported by the medical evidence. CR at 119.

On May 2, 2004, Dr. Andrecyk completed the NH-DHHS form for

“Determination of Incapacity Status” to report that claimant’s

chronic low back pain rendered him incapacitated. CR at 182.

Later that same month, claimant received two nerve blocks to help

alleviate his back and leg pain and raodiofrequency lesioning.

CR at 183, 206-12. Following those treatments, his back pain was

reduced to only mild, diffuse tenderness. Claimant’s condition

was otherwise fairly stable, with blood pressure and hypertension

both manageable and his psychological condition unchanged. CR at

183, 206-10.

In July 2004, a psychologist, Dr. Thomas Lynch, examined

claimant, because his persistent pain was impeding his ability to

sleep and causing him some depression. CR at 304. He explained

to Dr. Lynch that his back pain started when he was injured in a

car accident as a child, and was further aggravated in a second

car accident in 1995.5 CR at 304-05. Claimant looked sad and

5Dr. Lynch’s notes reflect the year was 1993, however, the record otherwise reflects the accident occurred in 1995. CR at 201, 345, 363.

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appeared depressed, but his affect was “appropriate.” CR at 308.

Though claimant showed mild deficits in concentration and short-

term memory, his intelligence and judgment appeared normal and he

had no inclination to harm himself. Id. Claimant told Dr. Lynch

he could perform a variety of domestic chores, but was not as

active as he would like and could not pursue hunting, fishing or

walking as he had previously. CR at 308-09. Dr. Lynch concluded

that despite claimant’s condition, he could interact

appropriately in a work setting and could both remember simple

instructions and complete tasks. Dr. Lynch stated that any

problems claimant might have with doing the type of tasks he had

always done would be caused by physical limitations from his back

and knee problems, not by any mental impairment. CR at 309.

Finally, Dr. Lynch predicted that given his “good support systems

in his environment, his prognosis for the future is fair.” CR at

310.

Following that examination, claimant had a Mental RFC

Assessment form completed by William Jamieson, a medical

consultant for the SSA. CR at 286-303. He evaluated claimant as

retaining his mental faculties, with no significant limitations,

despite his pain, and being able to maintain a regular work week,

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performed at a consistent pace without any unusual interruptions

or special supervision. CR at 287-88. The RFC also assessed

claimant as being only mildly limited in his ability to perform

daily living activities, maintain social functioning, maintain

concentration, persistence or pace, and as having no episodes of

decompensation. CR at 300.

Also in July 2004, claimant returned to Dr. Tobin to follow

up on the pain treatments he had received in May and June. Dr.

Tobin reports that claimant’s “shooting” pain in the back and

legs had improved, that his gait was slow but with no significant

limp, and that he was referred to physical and aquatic therapy.

CR at 213.

When claimant returned to Dr. Andrecyk for a routine check­

up in September 2004, he reported that he had returned to work as

a self-employed carpenter and that he was feeling well. CR at

185. Claimant was taking a low-dose of pain control medication.

His psychological state was unchanged, and his blood pressure

remained slightly elevated. CR at 185. Later in September 2004,

claimant returned to Dr. Andrecyk complaining of constant, very

high levels of back pain, which were only slightly appeased by

the pain medication. Dr. Andrecyk’s examination showed claimant

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suffered from reduced back flexibility and tenderness, but that

his lower extremity strength was “adequate.” CR at 186.

Claimant returned to the pain clinic on October 22, 2004 and

again on January 6, 2005, for prescription refills. CR at 214-

15. The treating nurse noted that claimant was “alert and

oriented,” but she was concerned about his prescription drug use

and intended to discuss that with Dr. Tobin. By February 2005,

the nurse noted that claimant’s pain should decrease and be

manageable if he were to take his medication as prescribed. Id.

Further treating notes indicate claimant’s condition worsened

throughout 2005, but his sleep problems, depression, pain and

blood pressure all continued to respond well to medication. CR

at 215-25. Claimant took methadone regularly, and several notes

reflect claimant seeking a prescription refill during this time

period. Claimant stated that his pain increased on exertion. CR

at 221. He received another series of injections from Dr. Tobin

in October 2005, and was advised to continue his prior

medications and avoid strenuous activities.

On January 30, 2006, Dr. S. Stevens, a medical consultant

for the state of New Hampshire, reviewed claimant’s medical files

and assessed his physical RFC. CR at 228-35. Dr. Stevens’

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assessment was similar to the April 2004 RFC assessment, finding

that claimant had reduced exertional capacity, with limitations

on lifting or carrying at 10-20 pounds but unlimited pushing

ability, standing reduced to at least 2 hours and sitting

remaining at 6 hours in an 8 hour workday. CR at 229. He was

found to be able to climb, balance, stoop, kneel, crouch and

crawl “occasionally,” with, again, no manipulative, visual,

communicative or environmental limitations. CR at 230-32. Dr.

Stevens determined that the “MER6 reasonably supports limiting

standing and walking to 5 hours out of 8 hour day,” CR at 230,

and “mostly supports claimant’s allegations.” CR at 233.

In March 2006, claimant was again referred to Dr. Lynch for

a psychological evaluation. CR at 236. Dr. Lynch concluded that

claimant had no severe functional problems caused by depression

or other affective disorder, but he also described claimant as

“being in a chronic state of adjusting to his condition,” and

expressly limited his opinion to non-physical impairments. CR at

241-42. Dr. Lynch specifically found that claimant “has not

found new skills or developed new skills since his back has

gotten worse. His short-term and long-term memory appear to be

6I assume “MER” stands for medical examination records.

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generally intact at this time. As a result, he has the ability

to learn new information.. . . [T]he extent that his back injury

prevents him from keeping up with a routine was beyond the scope

of the present evaluation to assess. He does have the ability to

interact appropriately with co-workers and supervisors if he was

in a work setting.” CR at 241. At that time, claimant’s

diagnoses were degenerative disc problems, fibromyalgia, high

blood pressure, chronic pain disorder, and chronic adjustment

disorder with depressed mood. CR at 241-42.

Also in March 2006, Dr. Carlos A. Palacio, a neurosurgeon,

evaluated claimant’s low back and leg pain. Dr. Palacio did not

find any justifiable basis for surgery at that time, but

recommended claimant pursue “aggressive attempts at conservative

management” with rehabilitation programs and continued pain

management. CR at 263.

Claimant received another RFC assessment in April 2006, to

evaluate his ability to work given his diagnosed limitations. CR

at 243-60. Claimant was assessed as having a “moderate” degree

of limitation in all categories of functioning.7 The summary

7The list included (1) restrictions of activities of daily living, (2) difficulties in maintaining social functioning, (3) difficulties in maintaining concentration, persistence, or pace,

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conclusions indicate that claimant was either not significantly

limited, or occasionally moderately limited, with respect to his

mental capacity for (1)understanding and memory and (2) sustained

concentration and persistence. CR at 257-58. Claimant was “seen

as having relatively good residual function in all areas.” CR at

259.

Dr. Bloom continued to monitor claimant’s back and knee

problems throughout 2006. On June 21, 2006, Dr. Tobin completed

a questionnaire about claimant’s spinal condition and concluded

that his combined impairments equaled a severity of Listing §

1.04A. CR at 353-54.

Finally, on November 1, 2006, claimant was evaluated by Dr.

Frank A. Graf, for purposes of his pending application for social

security benefits. CR at 339-51. Dr. Graf also completed an RFC

questionnaire. Dr. Graf concluded that claimant’s depression and

anxiety were affecting his physical condition and that he was

incapable of working even “low stress” jobs. CR at 340. He

determined that claimant could not work an eight hour day, could

not sit more than 15 minutes or stand more than 10 minutes, could

not walk around a city block, and could only rarely lift less

and (4) episodes of decompensation. CR at 253.

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than five pounds. CR at 340-42. His opinion was claimant could

not return to work. Id. Dr. Graf stated that the earliest date

that the described symptoms and limitations applied was January

20, 2002. CR at 343. Based on this evaluation, Dr. Graf opined

that claimant’s back problems satisfied the disability criteria

of Category 1.04, his ambulatory and knee problems satisfied the

criteria of Category 1.02A, and his mood disorders satisfied the

criteria of Category 12.04, rendering him “disabled for all

employment,” with the disability likely to continue for at least

12 months. CR at 350.

At the November 9, 2006, hearing, the ALJ questioned the

vocational expert, Maurice Demers, about what jobs claimant could

perform given his functional limitations. CR at 373. The ALJ

specifically asked Mr. Demers to assume an individual who needed

sedentary work and required low stress and direct supervision.

Id. Mr. Demers testified that with claimant’s long history of

carpentry work, he could be an estimator or an information clerk,

for which there were several jobs available both in New Hampshire

and nationally. Id. When asked about the further restriction of

frequent drowsiness caused by pain medication, Mr. Demers stated

no jobs would be available that could accommodate that

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limitation. Claimant’s counsel asked the ALJ whether he would

stipulate that, if Dr. Graf’s RFC were accepted, it would also

preclude claimant from obtaining any employment. CR at 374.

Without committing to Dr. Graf’s RFC, the ALJ said he would so

stipulate. Id.

II. Discussion

A. Standard of Review

Claimant has a right to judicial review of the decision to

deny his social security benefits. See 42 U.S.C. § 405(g) (Supp.

2007). The court is empowered to affirm, modify, reverse or

remand the decision of the Commissioner, based upon the pleadings

and transcript of the record. See id. The factual findings of

the Commissioner shall be conclusive, however, so long as they

are supported by “substantial evidence” in the record. See Ortiz

v. Sec’y of HHS, 955 F.2d 765, 769 (1st Cir. 1991) (quoting 42

U.S.C. § 405(g)).

“Substantial evidence” is “‘more than a mere scintilla. It

is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305

16

U.S. 197, 229 (1938)); see also Currier v. Sec’y of HHS, 612 F.2d

594, 597 (1st Cir. 1980). The Commissioner is responsible for

resolving issues of credibility and drawing inferences from the

evidence in the record. See Rodriguez v. Sec’y of HHS, 647 F.2d

218, 222 (1st Cir. 1981) (reviewing court must defer to the

judgment of the Commissioner). The issue before the Court is not

whether it agrees with the Commissioner’s decision, but whether

that decision is supported by substantial evidence. See id.

Finally, the court must uphold a final decision denying benefits

unless the decision is based on a legal or factual error.

See Manso-Pizarro v. Sec’y of HHS, 76 F.3d 15, 16 (1st Cir. 1996)

(citing Sullivan v. Hudson, 490 U.S. 877, 885 (1989)).

B. Claimant’s Arguments

1. Legal Error in Selecting Onset Date

Claimant first argues the Commissioner’s denial of his

application for benefits before January 7, 2005, should be

reversed because it constitutes legal error, citing Manso-Pizarro

v. Sec’y of HHS, 76 F.3d 15 (1st Cir. 1996). He contends that

because he was not evaluated by an agency physician before June

30, 2005, his last insured date, there was no medical evaluation

of his physical RFC to support the ALJ’s conclusion that he

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retained the ability to work until January 7, 2005. As a result,

claimant asserts that the ALJ was required, as a matter of law,

to accept Dr. Graf’s RFC assessment that claimant became disabled

in January 2002. While not entirely clear, the argument seems to

be that the ALJ erroneously based the January 7, 2005, disability

onset date on Dr. Andrecyk’s treatment notes and the ALJ’s

personal evaluation of the medical records, rather than on expert

medical opinion as required by Manso-Pizzaro. I find this

argument unpersuasive.

Manso-Pizzaro stands for the settled proposition that when a

claimant puts his functional capacity at issue “the ALJ must

measure the claimant’s capabilities, and ‘to make that

measurement, an expert’s RFC evaluation is ordinarily essential

unless the extent of functional loss, and its effect on job

performance, would be apparent even to a lay person.’” Id. at 17

(quoting Santiago v. Sec’y of HHS, 944 F.2d 1, 7 (1st Cir.

1991)). “With few exceptions (not relevant here), an ALJ, as a

lay person, is not qualified to interpret raw data in a medical

record.” Id. (citing Perez v. Sec’y of HHS, 958 F.2d 445, 446

(1st Cir. 1991)). The ALJ is expected to be guided by a

physician’s or other expert analysis of the claimant’s functional

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capacity, unless the claimant has such minimal physical

impairment that it obviously poses no significant exertional

restriction, obviating the need for a medical assessment of RFC.

See Manso-Pizarro, 76 F.3d at 17-18; Perez, 958 F.2d at 446-47.

Here, claimant’s RFC is at issue, and his problems are

sufficiently persistent and diffuse that a medical assessment of

claimant’s ability to perform the ordinary tasks of life would be

expected. Claimant’s physical and mental impairments also appear

to adversely affect one another, further complicating what is a

reasonable expectation of his RFC and indicating the need for

medical guidance on the issue. Despite claimant’s statement that

the ALJ “acknowledg[ed] there was no acceptable medical source

who had rendered an opinion regarding the Plaintiff’s RFC” and

that the April 2004 RFC assessment “was completed by a non-

acceptable medical source,” Mot. for Order Reversing the Decision

at 5 & 6, the record reflects that the ALJ both considered the

April 2004 RFC and accepted the medical evidence supporting that

assessment.8 The record here in fact includes the type of expert

8Although the ALJ denied claimant’s request to have the 2004 application reopened because there was no new, material evidence to justify reconsidering the prior determination, the final decision here in fact considered claimant’s entire medical record, from the initial January 2002 injury to the November 2006

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medical evaluation of claimant that Manso-Pizarro requires.

The record contains four RFC assessments: a physical RFC

assessment from April 2004, a mental RFC assessment from May

2004, and a second physical and mental RFC assessment done in

January and April 2006. See CR at 114-21 (April 2004 RFC), 286-

303 (May 2004 RFC), 228-35 (January 2006 RFC) and 257-60 (April

2006 RFC). The May 2004 and the two 2006 RFC assessments were

conducted by medical doctors. Although the April 2004 physical

RFC assessment was done by a claims adjuster who, as a lay

person, is not qualified to interpret raw medical data, it relied

on the treating physician’s medical opinions of claimant’s

physical capacity to assess claimant’s ability to work. CR at

115-16. The May 2004 mental RFC concluded that claimant’s mental

health issues did not preclude him from returning to a regular

work week. CR at 287-300. The January 2006 physical RFC first

noted a diminished capacity to perform a full work schedule, when

Dr. Stevens concluded “there is no evidence of neurological

deficit,” but “RFC takes pain and obesity into consideration.

MER reasonably supports limiting standing and walking to 5 hours

hearing. See CR at 15-25. Accordingly, all the evidence contained in the certified record is subject to review.

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out of 8 hour day.” CR at 229-30. In April 2006, however, Dr.

Stenslie’s mental RFC assessment found claimant was still able to

complete a work day and work week “without undue corruption,” and

that claimant’s allegations were “only partially credible and not

as substantial in terms of his functional limitations as he

suggests.” CR at 259.

These four RFC assessments substantiate the ALJ’s conclusion

that claimant retained the capacity to perform low stress and

sedentary exertion work activity until January 2005. Each of the

RFC assessments in the record contain references to the

underlying doctor’s evaluation of claimant’s physical and mental

health. This evidence of RFC assessments performed by medical

doctors and based on medical opinions is the type of “expert’s

RFC evaluation . . . ordinarily essential” to the ALJ’s

measurement of a claimant’s capabilities. Manso-Pizarro, 76 F.3d

at 17. The record demonstrates that the ALJ was guided by the

reports and analyses of multiple doctors in reaching the January

7, 2005, date. I find that the ALJ’s January 7, 2005, decision

was not an inappropriate judgment by an “unqualified” lay person

based only on raw medical data and does not constitute legal

error. See id.

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2. Substantial Evidence

Claimant next argues that the January 7, 2005, onset date is

not supported by substantial evidence and that, instead, the

record demonstrates that he first became disabled in Janury 2002.

Given the deference with which the record must be reviewed, this

argument is wholly unpersuasive. Only a few facts bear repeating

to demonstrate claimant retained the ability to work during the

three years from January 2002 to January 2005.

Only four months after his initial January 2002 injury, Dr.

Buckley released claimant to light duty work in May 2002. CR at

160. From June through August 2002, claimant complained of

stiffness, but Dr. Buckley continued to find claimant able to do

light duty work and advised claimant to pursue physical therapy.

CR at 160-63. By October 2002, claimant was permitted to resume

full activities with no restrictions. CR at 163. After injuring

his same knee a second time in January 2003, claimant again had

surgery and recovery was slower; however, by May 2003, he again

was allowed to go back to work provided he did not kneel or

squat. That summer claimant began complaining of back pain. In

October 2003, Dr. Buckley formally identified claimant as having

a partial permanent impairment since the January 2003 injury, but

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did not alter his assessment of claimant’s ability to continue

working. CR at 285.

In January 2004, claimant first began seeking care for his

heart problems and feelings of depression. Although these

problems continued to plague him throughout the claim period,

they were not identified as disabling claimant until at least

2006. In February 2004, a psychologist gave claimant a “clean

bill of health.” CR at 177. Claimant was also diagnosed with

obesity, hypertension, high blood pressure and pain, yet managed

all these problems with medications and other treatments. CR at

181-83, 196-202, 206-12. The evidence shows that claimant

responded well to this treatment, so well that by September 2004

he returned to work as a self-employed carpenter. CR at 185. At

that time, claimant reported feeling well and needed only low

dose pain medications. Id. During fall of 2004, the evidence

suggests claimant’s condition began to deteriorate, as he

returned to the pain clinic for prescription refills, and the

nurse notes reflect concern about his medication dosage. On

January 7, 2005, Dr. Andrecyk noted claimant appeared distressed.

CR at 186. The ALJ determined that claimant’s increase in pain

combined with his spine and knee limitations sufficiently

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impaired his posture, gait and mood to render claimant disabled.

The record is replete with medical evidence that throughout

2002, 2003 and 2004 claimant could have returned to work, but

just did not. Although Dr. Tobin identified claimant as having a

permanent partial disability in October 2003, he still authorized

claimant to return to his work, with the only restriction being

not to kneel or squat. As late as September 2004, claimant

stated he had returned to work as a self-employed carpenter. The

record contains several opinions finding claimant was not

credible and that his functional capacity was greater than his

alleged limitations. In making factual findings, the ALJ must

weigh the evidence and evaluate credibility, to which the court

must defer unless not supported by the record. See Frustaglia v.

Sec’y of HHS, 820 F.2d 192, 195 (1st Cir. 1987). Based on this

record, it was entirely reasonable for the ALJ to decide that

claimant did not become disabled until January 7, 2005. Because

that decision is supported by substantial evidence, it is

conclusive. See Ortiz, 955 F.2d at 769.

Conclusion

For the reasons set forth above, I recommend that claimant’s

Motion for Order Reversing the Decision of the Commission

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(document no. 8) be denied, and defendant’s Motion for Order

Affirming the Decision of the Commissioner (document no. 11) be

granted. Any objections to this report and recommendation must

be filed within ten (10) days of receipt of this notice. Failure

to file objections within the specified time waives the right to

appeal the district court’s order. See Unauthorized Practice of

Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992);

United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).

James R. Muirhead _ United States Magistrate Judge

Date: September 5, 2008

cc: D. Lance Tillinghast, Esq. Seth R. Aframe, Esq.

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